Police commissioner defends force in NYC showdown

NEW YORK – The police shooting near the Empire State Building last week is a testament to how quickly officers can fire off 16 rounds to take down an armed suspect.

But the nine wounded bystanders attest to another truth: Officers often miss.

Police Commissioner Raymond Kelly reiterated Monday that officials believe that two patrolmen followed proper police protocol once Jeffrey Johnson pulled a pistol on them moments after he ambushed a former co-worker — an assessment supported by experts on police policy and training.

"When you're told that someone just killed someone around the corner, and five seconds later that person identified as the shooter points the gun at you ... it was the appropriate action to take," Kelly said at an unrelated press event in midtown Manhattan.

Dramatic security video of the Friday morning confrontation shows Johnson pointing the weapon at the officers, other pedestrians scattering and the two officers firing — one from very close range, the other while retreating.

The police volley instantly killed Johnson, who never returned fire. Stray bullets, ricochets and fragments caused nonlife-threatening gunshot and graze wounds to nine civilians. Two remained hospitalized Monday in stable condition.

Kelly called it "unfortunate" that innocent people were hurt. But, he added, "Thank God, everybody is going to be all right."

Still, the bloodshed was another reminder of the public safety challenges that first emerged in the mid-1990s, when the police department abandoned bulky .38-caliber revolvers and armed officers with rapid-fire, 15-shot semiautomatics. At the time, the department claimed it needed the more modern weapons because criminals outgunned officers.

Experts said the number of bullets fired by the two officers wasn't surprising, nor was the fact that some of them missed their intended target.

"Those 16 rounds could have been fired in literally two seconds," said David Klinger, a University of Missouri criminology professor.

Eugene O'Donnell, a former New York City police officer who is now a lecturer at John Jay College of Criminal Justice, said: "I think people want to hear a magic number" of gunshots needed to take down a suspect.

"There is no magic number," he said.

Analysis shows NYPD officers "routinely, unfortunately, fire shots that miss," O'Donnell said. "It's uncommon for the cops to shoot, but when they do shoot, their hit rate is not very high."

According to the NYPD's annual firearms discharge report for 2010 — the latest available — officers fired their guns in 92 encounters — the lowest number in the 40 years the department has tracked such data. But the same data showed the total number of bullets fired by police increased 24 percent, to 368 from 297.

NYPD officials say recruits are repeatedly cautioned to be aware of their surroundings and to try to take cover and assess a situation before opening fire. But once shooting starts, officers are trained to "shoot to stop" by firing at a target's "center mass," or torso.

"The rule as to how many shots should be fired is how many shots are necessary to terminate the threat," said Ed Mullins, president of the Sergeants Benevolent Association.

Throughout the semiautomatic era, the NYPD officer have been criticized for unleashing large fusillades. Most notable were the slayings of two unarmed men in vastly different settings: Amadou Diallo by 41 rounds while emerging from his Bronx home in 1999 and groom-to-be Sean Bell by 50 shots while sitting at the wheel of his car on a quiet Queens block in 2006.

In both of those cases, the officers who fired their guns were charged criminally but acquitted at nonjury trials.

The Johnson shooting also is under a routine review by a grand jury, but the experts predicted charges were unlikely.

The shooting appeared to be "a reasonable and acceptable use of force," said John Shane, a former Newark, N.J., police captain who also teaches at John Jay. "I have no doubt (the two officers) would not be indicted by a grand jury."

Added Shane: "It's actually a good thing that the video exists in the way that it does. ... This is the rare occasion where you get to see what happened before, during and after police fired."

Wounded bystanders have successfully sued police in the past.

William H. Cooper, who represented a bystander shot in the head by police during a gunfight with a robbery suspect on a Bronx street in 2000, said such cases typically boil down to officers trying to show that "the danger to the public was so excessive that they had every right to discharge their weapon" and plaintiffs arguing that deadly force "created such a danger to others that the risk didn't equal that decision."

In that case, city officials settled with the partially paralyzed man, Wilson Ramos, for $6 million.

In another civil case, the family of a woman taken hostage in 1993 by a bank robbery suspect and then killed by police exchanging fire with the gunman was awarded nearly $4 million. The appeals court found "police violated clearly established protocols and procedures," partly because police guidelines tell officers not to fire when shooting will unnecessarily endanger innocent people.

But in another case, the state's highest court threw out a negligence lawsuit from a woman who was hit by a police bullet during a 2005 shootout between officers and a suspect on a Harlem street. The Court of Appeals found the officers were justified in firing because they had a clear view of the suspect and hadn't seen the bystanders.